detail notes on tort of privacy

1. Tort of privacy
LECTURE 1

2. Learning Outcomes
 We will discuss how a torts evolve from no recognition to a semblance of
recognition.
 Importance of case law in the development of law in general and tort law in
particular.
 Protection afforded to an non-recognized tort through other allied mechanisms.
 An overview of law of privacy in torts

3. Definition of privacy
 ‘The right of the individual to be protected against
intrusion into his personal life or affairs, or those of
his family, by direct physical means or by publication
of information’.
The Calcutt Report (1990)

4. Does a tort of privacy exist?
 No, there is no recognized tort of privacy in English Law
 What does recognition mean in this context?

5. Protection afforded to privacy
 …nevertheless, the protection against breach of privacy exists
 This protection is based on
 the traditional tort of breach of confidence
 the provisions of the Human Rights Act 1998 (UK)*
 Do you think affording protection to privacy amounts to
a recognition of the tort?

6. Tort of breach of confidence
 Elements as enunciated in Coco v A N Clark (1969)*:
● there must be information which has ‘the necessary element
of confidence about it’, or, in other words, could be considered
private rather than public;
● the defendant must be ‘under an obligation of confidence’;
and
● the defendant must make ‘unauthorised use’ of the
information.
 Edward Joseph Snowden?

7. Why have you not watched this yet?

8. Argyll vs Argyll 1967- Breach of marital
confidence
 An interlocutory injunction was granted to protect against
the revelation of marital confidences, and the newspaper
to which the Duke had communicated such information
about the Duchess was restrained from publishing it.
 The concept of confidentiality was applied so as, in effect,
to protect the privacy of communications between a
husband and wife.

9. Viewer discretion advised!

10. Analysis
 What is common in these two cases?
The requirement for a relationship between the
two parties.
Employee and Employer
Husband and Wife

11. What is the issue with this requirement?
 What if someone finds your personal diary in the street and publishes it?
 Or if someone steals your private information from Facebook?
 Fake mirror image accounts?

12. Attorney-General v Guardian Newspapers
Ltd (No 2) (1990)
 This requirement started to dissipate with time.
 Lord Goff stated categorically that such a relationship was not required, and that:
“a duty of confidence arises when confidential
information comes to the knowledge of a
person . . . in circumstances where he has notice, or
is held to have agreed, that the information is
confidential, with the effect that it would be just in
all the circumstances that he should be precluded
from disclosing the information to others.”

13. Legal principle
 A duty of confidence arises where someone
receives information in circumstances where
he or she agrees or has notice that the
information is confidential, and it would be
just in all the circumstances that they should
be prevented from disclosing that information
to others.

14. Duty of confidence vs Freedom of
expression?
????????

15. Kaye v Robertson (1991)
 Search and read the case
 This case showed that “Outside the limited situations in which a breach of
confidence could arise, there was no specific protection for privacy”.
 Tort of malicious falsehood protects commercial interests
 Was used in this case

16. The current law on Privacy
 There is no English tort of invasion of privacy.
 Confirmed by the Court of Appeal in Wainwright v Home Office (2002) and the
House of Lords in Campbell v Mirror Group Newspapers (2004)
 In Pakistan, invasion of privacy is a crime, or a cyber-crime when internet is
employed.
 Although we do not have an official and explicit tort of privacy, yet since 2001 the
courts have acknowledged the existence of an action that can do the work that
might be expected of a tort of privacy.

17. The Kickoff!
Douglas, Zeta Jones and Northern & Shell
plc v Hello! Ltd (2001).
 Book!

18. Campbell v Mirror Group Newspapers
(2004)
 Book!
 Legal principle
The test for misuse of private information is
whether the claimant had a reasonable
expectation of privacy, and, if they did, whether
their right to privacy outweighs the defendant’s
right to freedom of expression.

19. Questions
 Do you think the video of James Franco and Amber
Heard in an elevator when presented in the court
was a breach of privacy?
 Was it a breach of privacy after being aired on
television after its showing in the court?
 Would it have been a breach of privacy, if it had
been shown by CNBC before being shown as
evidence in court?

20. Elements of the Tort
 In Campbell , the House of Lords held that in cases involving
‘misuse of private information’ that the three-stage test in
Coco v Clark will be replaced by a two-stage test:
 Did the claimant have a reasonable expectation of privacy
with respect to the information disclosed?
 Is the person’s right to privacy more important, in the
circumstances, than someone else’s right to freedom of
expression (usually, though not always, the media’s right)?

21. Reasonable expectation of privacy
 Murray v Express Newspapers plc (2008), the Court of Appeal said:
“As we see it, the question whether there is a reasonable expectation of privacy
is a broad one, which takes account of all the circumstances of the case. They
include the attributes of the claimant, the nature of the activity in which
the claimant was engaged, the place at which it was happening, the
nature and purpose of the intrusion, the absence of consent and whether
it was known or could be inferred, the effect on the claimant and the
circumstances in which and the purposes for which the information came
into the hands of the publisher.”

22. Circumstances relevant to the Reasonable
expectation of privacy
1. The attributes of the claimant,
2. The nature of the activity in which the claimant was engaged,
3. The place at which it was happening,
4. The nature and purpose of the intrusion,
5. The absence of consent,
6. Whether it was known or could be inferred,
7. The effect on the claimant,
8. The circumstances in which and the purposes for which the information
came into the hands of the publisher.

23. The effect on the claimant
 Campbell, effect on a recovering addict who is vulnerable
 Possibility of relapse due to pressure?
 Lord Hope:
whether disclosure of the information about the individual (‘A’) would give substantial
offence to A, assuming that A was placed in similar circumstances and was a person of ordinary
sensibilities . . . The mind that has to be examined is that, not of the reader in general, but of the
person who is affected by the publicity.

24.  The majority of the judges agreed that revealing the precise details of her
treatment was a breach of confidence, for two reasons.
 First, giving details of the kind of things that would happen at NA meetings, and how
frequently Ms Campbell attended them, was essentially the same thing as revealing
details of someone’s medical treatment, and revealing that kind of information had
always been seen as a breach of confidence.
 Secondly, publishing the details of her treatment could have a harmful effect on Ms
Campbell’s efforts to beat her addiction, and this too meant she had a reasonable
expectation of privacy

25. Public and private activities
 Private activities are more likely to give rise to a reasonable expectation of privacy, but public
activities usually will not.
 E.g. Coitus between consenting adults.
 Jagger v Darling (2005), the model Elizabeth Jagger was awarded an injunction preventing further
publication of CCTV images, which showed her and her boyfriend ‘engaging in sexual activities’
inside the closed door of a nightclub. The court said this was a situation where there was clearly a
legitimate expectation of privacy.
 Circumstances where a public activity can be protected by the tort of privacy?

26. Use of pictures
 More intrusive than words
 Not always protected
 When doing ordinary things?
 When doing something out of the ordinary
 It’s all about context

27. The position of children
 The law is extra-sensitive when dealing with matters involving children
 Degree of vulnerability
 Absolute or not?
 Boris Johnson case?

28. Source of the information
 Loreena vs Ash
 Eady J:
the fact that they had a close friendship was a reason why Ms McKennitt had a
reasonable expectation that conversations between them, about personal matters,
would stay private.

29. Information in the public domain
 Already out
 International media vs National media?
 PJS v News Group Newspapers (2016)
 Sharing with the university something that is already known to your classmates?

30. Partial revelations
 Loreena vs Ash
 where a case involved personal information, the fact that
the information had been revealed to one group of
readers did not mean that fresh revelations to different
groups could not cause grief or distress. For this kind of
information, protection should only be lost where the
information is so generally accessible that it can no
longer be considered confidential.

31. Balancing Privacy with freedom of
expression
 Step two
 …..whether there is a public interest in publishing the information, which
might outweigh the claimant’s right to privacy.
 General defense for media outlets
 Campbell, the House of Lords approach of decoupling the published info
 Proving a lie about addiction, yes
 Details of treatment, no

32. Contributing to a public debate
 Rio Ferdinand v MGN (2011)
 English football captain, reformed cheater photographed with paramour
 Role model for young boys
 Public debate about his suitability as captain due to his former ill-repute
 Public interest or privacy?
 The Judge concluded ‘the balancing exercise favours the defendant’s right of
freedom of expression over the claimant’s right of privacy’.

33. Public interest and celebrities
 Should celebrities be given a special treatment?
 ‘the public interest’ and ‘things the public are interested in’
 Mosley v News Group Newspapers (2008)
 The case involved the President of Formula 1 motor racing and his sado-masochistic orgy,
the paper claimed that the orgy had had a ‘Nazi theme’. They said there was a public
interest in knowing that a man in the claimant’s public position was indulging in sado-
masochistic sex with prostitutes, and doing so within a Nazi-themed setting.
 Eady J found that there was no truth in the allegations of Nazi overtones. That being the
case, he said that there was no public interest in revealing the fact that someone in the
claimant’s position was taking part in sado-masochistic orgies.

34. Conduct of the defendant
 CC v AB (2006)
 Defendant’s vendetta
 A threat to expose something?
 Why is CC v AB peculiar?
 Rights of third parties can also be potentially affected

35. Correcting a false picture
 where a celebrity has presented a particular image to the public, and the
confidential information shows this image to be false.
 Campbell
 Beckham v News Group Newspapers (2005)
 Nanny’s exposition of David and Victoria Beckham’s marriage
 They portrayed themselves as a happy couple
 Ferdinand

36. The right to tell
 Diverging interests on the same story
 McKennitt

37. Remedies
 Injunction
 Injunction to prevent publication or further publication.
 Interim or permanent injunction
 Transitioning injunction
 Section 12 of the Human Rights Act 1998 states that a court should do the balancing exercise at the
time of issuance of the injunction (prior to the trial)

38. Remedies
 Cream Holdings v Banerjee (2004), the House of Lords said that in most cases,
an interim injunction should only be ordered if the claimant could prove that it
was more likely than not that they would win at trial.
 An injunction might also be granted in exceptional situations where the
consequences of disclosing the information would be especially serious for them.
 A claimant seeking an injunction to prevent publication before trial must also
prove that their loss could not be equally well compensated by damages.

39. Remedies
 There are cases where monetary compensation may be sufficient, however, and
there, an injunction will be refused.
 Douglas, the court refused to stop the circulation of Hello! on the grounds that,
on the facts, the couple’s loss could be adequately compensated without
suppressing publication.
 The harm done by Hello! was that it had compromised their right to sell pictures
of themselves, and this was something that money could compensate for.
 Important:
 If a court imposes an injunction preventing publication, that injunction applies to all
media organisations which know about the injunction, and not just the newspaper
named in the case.

40. Remedies
 Damages
 In cases where confidential information is published before the claimants have a chance to try to prevent
it.
 However, damages for breach of confidence tend not to be as high as in defamation actions,
 For example. Campbell v MGN (2004), the House of Lords upheld an award for £3,500 for model Naomi
Campbell, after the Mirror published photos and details of her visits to Narcotics Anonymous.

41. Summary of topic
 There is no specific tort of privacy in English law, but the law of confidentiality has developed to protect
privacy.
Background to privacy protection
 The traditional tort of breach of confidence protects against the disclosure of confidential information. It
applies where:
 the information is private;
 the defendant is under an obligation of confidence;
 the defendant makes unauthorised use of the information.
 Outside these rules, there was traditionally no specific protection for personal privacy.

42. Summary of topic
The current law
 Since 2001, the courts have developed the law of confidentiality, creating a new
type of claim, sometimes called ‘misuse of private information’.
 It uses a two-stage test:
 Did the claimant have a reasonable expectation of privacy?
 Is that right more important than another’s right to freedom of expression?
 There is a reasonable expectation of privacy where information was obviously
private or disclosure would give substantial offence to someone in the claimant’s
position.

43. Summary of topic
Remedies
 There are two potential remedies for breach of confidence/misuse of public
information actions:
 Injunctions
 Damages